Probate is the formal legal process where the court recognizes a will. It involves the court naming an individual or institution to administer the estate as directed by the will. This representative or executor must account for all assets and debts of the estate before moving forward with the distribution of assets listed within the will.
What if I disagree with the will?
Probate litigation refers to an official challenge to a will or objection to the administration of an estate. Named beneficiaries or others who stand to gain from the estate may not agree with the will. In these situations, you can challenge a will. There are generally three questions to ask when building the challenge.
The first question to consider involves the validity of the will — is the will legit? State law generally requires the creator have the mental capacity to put together the will. This basically means that in order for the court to view a will as valid, the creator must have had the mental capacity to understand what they were doing when they wrote the will. The courts generally presume an adult has the mental capacity to make a will. As a result, anyone that challenges the validity based on this argument will likely have the burden to establish that the adult who created the will lacked the needed mental capacity.
State law also often requires the presence of two witnesses. This is generally achieved by having the two adult witnesses who do not stand to benefit from the will sign the will.
The next two reasons include:
- Influence. A beneficiary may believe another individual fraudulently influenced the creator of the will.
- Another will. A more current will generally trumps an older will, as long as it is valid.
If any of these reasons are present, you may be able to successfully challenge the will.
How do I challenge the will?
The next step generally involves one of two options: filing a contest with the right court or moving forward with mediation. The filing initiates a legal proceeding to invalidate the will in question while mediation involves negotiations to help reach a resolution without litigation.